Cooper v State of New South Wales

The Proceedings

1. By an Amended Statement of Claim filed on 27 February 2018 the plaintiff sues the defendant for damages arising out of an incident which occurred at night on Gibson Street in Goulburn on 8 May 2014. The plaintiff was driving her car south along Gibson Street. She slowed her vehicle when she came across a dog in the middle of the road. She swerved to the left.
2. The passenger side of her vehicle came into contact with Senior Constable McVey, a police officer who was on the eastern side of the roadway, a short distance out from the kerb.
3. Senior Constable McVey was knocked over by the plaintiff's car. The plaintiff alleged that in the accident she suffered an injury to her back, an injury to her left shoulder and psychological injuries.
4. The plaintiff pleaded that her claim for damages was a police tort claim as defined in s 9B of the Law Reform (Vicarious Liability) Act 1983 (NSW). Under that Act the State is vicariously liable for any tort committed by a police officer.
5. The defendant did not dispute that the acts or omissions of Senior Constable McVey were committed in the course of his functions as a police officer. The defendant did not dispute that the claim was a "police tort claim" within the meaning of the Law Reform (Vicarious Liability) Act 1983 (NSW). The defendant accepted that the plaintiff may make a claim against the State for such vicarious liability.
6. In a Defence filed on 20 April 2018 the defendant denied that Senior Constable McVey committed any tort. That Defence also pleaded contributory negligence.
7. The legal issues between the parties were further delineated by Statements of Issues filed in accordance with the Practice Note. Those legal issues are dealt with below. First it is necessary to make findings of fact.

The Accident

1. The plaintiff gave evidence that she was driving south on Gibson Street, Goulburn on the evening of 8 May 2014. She said (T 20/2): "I was driving, I had my lights on, I seen a dog and I swerved cause I didn't want to hit the dog and if I had have hit it, I could have been in an accident. I kept driving and then all of a sudden I heard a big thump. I got out of my car and I saw a police officer in the gutter."
2. The plaintiff gave evidence that she jumped out of the car and was scared. She felt shocked and scared because she thought the police officer may have been in a critical condition or that he might have died. She started crying. She noticed that the police officer was bleeding from his forehead. He was complaining about pain. A nurse who was passing by pulled over and rendered first aid to Senior Constable McVey.
3. Senior Constable McVey was in the process of arresting a man who was in a house in Gibson Street. That man was at the side of the road when the accident happened. He said to the plaintiff: "You've killed him, you've killed him". That made the plaintiff feel even more upset and shocked.
4. The plaintiff said that the street light in the vicinity was out and it was dark when she hit Senior Constable McVey. She could not recall any traffic travelling in the other direction. At no point prior to the collision did she see the police officer on the roadway. She was travelling at about 50kph. She was later interviewed by Sergeant Burlin and she said that she told him the truth about what had happened. The statement she gave to Sergeant Burlin was tendered.
5. When asked by Sergeant Burlin what injuries she received as a result of the collision she said: "My back, my chest and my right shoulder. I'm still suffering shock from it." This statement was given on 15 May 2014.
6. The plaintiff gave evidence that her upper body was thrown forwards in a sharp movement during the collision. She did not feel anything in her shoulder at the time but she gave evidence that a problem in her left shoulder emerged two days later. She said that she saw her GP concerning the left shoulder and back injuries.
7. In cross-examination the plaintiff said that when she was driving south on Gibson Street she did not see a police vehicle parked on her right-hand side. She said that there was no street light at the point of impact and that is why she didn't see the vehicle. She did not see the police officer directly in front of her and she did not notice any police cap (which Senior Constable McVey was wearing) which had a reflective band upon it.
8. The plaintiff said in cross-examination that she was focussed on the dog on the road ahead of her and was concerned about what the dog might do next. She was watching it carefully. She swerved and kept driving. It was put to her that she should have slowed down when she saw the dog, but she said she slowed from 50kph down to about 40kph.
9. The plaintiff said in cross-examination that she swerved when she was close to the dog because otherwise she would have hit it. She said if she hit the dog she might have been in danger and could have rolled her car. She did not want to hurt the animal. It was suggested to her that she should have tried to stop her car completely instead of swerving.
10. While I have reservations about the accuracy of some evidence about medical issues given by the plaintiff (which I deal with below), I accept the plaintiff's version of the accident. The plaintiff struck me as a person with limited intellectual capacity, who completely lacked guile. I accept her version of the accident because it accords with the evidence of other witnesses, which is dealt with below.
11. Constable Gliddon was the partner of Senior Constable McVey when carrying out duties that night. He did not give oral evidence, but his statement dated 8 May 2014, which he had signed, was tendered. That statement recorded the two police officers going into the house in Gibson Street and emerging with the man who was being arrested. The three men got to the kerb where there was "a constant stream of vehicular traffic driving north along Gibson Street, of four cars". Constable Gliddon also saw "one set of headlights heading south towards us". This must have been the plaintiff.
12. Constable Gliddon said that Senior Constable McVey stepped off the kerb, but he and the man being arrested remained on the kerb. He could see the southbound vehicle approaching. He said that Senior Constable McVey took about two to three steps onto the road. He saw him raise both his hands and place his hands up in a motion for cars in both directions to stop.
13. His statement recorded the following version of the accident: "At that point the car in the southern direction was getting close to John and I saw John lower his left hand, which was to stop the northern bound traffic. He kept his right hand up, to signal to the closer, southbound vehicle. I thought John was about to get hit by the southbound vehicle. I yelled, 'John get the fuck off the road'. John turned away from the vehicle, now facing south, and he took perhaps one step back towards the curb but the southbound vehicle did not brake nor have time to stop. The front near-side of the vehicle struck the back of John's legs. John has been lifted up into the air, his legs were quite high. He came to rest directly next to the curb, landing on his right side. I'm not sure if he hit the curb or not but he was very close to it."
14. There were statements from two northbound drivers.
15. Ms Whittaker saw the marked police vehicle on her left side of the road i.e. the western side of the road. Directly opposite the police car she noticed a male police officer talking to a man. She also saw a big brown dog near the man and the police officer. She continued to drive past and a car passed in the opposite direction (this must have been the plaintiff).
16. Ms Whittaker travelled 100 metres further north when she her a loud thump sound behind her. She assumed that the car going south had struck the brown dog. She went home, but contacted the police later when her husband told her there had been an accident involving a policeman on Gibson Street.
17. Ms Gwynne was the nurse who was driving north, who stopped and rendered assistance. She said in her statement that she had just checked the clock on her car before the accident happened, and it was 6.24pm. She had driven south down Gibson Street and had seen the marked police vehicle. She made a U-turn because she forgot something and had to drive back north. There were no cars in front of her. It was dark. She saw the headlights of a car travelling south (this must have been the plaintiff). She said that she was fixated upon a stray dog that was in the middle of the road. It was near the police vehicle. She slowed so she wouldn't hit the dog. She said: "I then saw out the corner of my right eye, a person fly off the side of the road. I quickly realised that that person had been struck by the car travelling in the opposite direction to me."
18. It is noteworthy that Ms Gwynne did not see Senior Constable McVey on the road before he was struck, although he must have been there, in the dark.
19. Police took a handwritten statement on 10 May 2014 from the man who was arrested and who was standing near the kerb. He said: "The fella that got hit with the car was on the left-hand side of me. He was watching what I was doing. He stepped off the gutter onto the road out the front of [address]. He took a step onto the road and a car travelling south collided with the copper. There was a big thud and the copper got dragged down the road."
20. Of the plaintiff, he said; "I saw the driver of the car was a female. At the time of the accident, the driver had her headlights on and she was driving at a normal speed. She wasn't speeding."
21. Senior Constable McVey gave oral evidence and was cross-examined. He said that he went to the address in Gibson Street, together with Constable Gliddon, at about 6.30pm on 8 May 2014. He gave evidence about what he was doing and what his thought processes were which led to him entering the roadway. That will be dealt with below.
22. He said that it was going on dusk when he arrived. I reject that evidence. It was an agreed fact that sunset in Goulburn on 8 May 2014 occurred at 5.13pm. It would have been well and truly dark by 6.30pm, particularly in that part of Gibson Street where the street light was out.
23. As to the accident itself, he said that when he was standing on the eastern kerb of Gibson Street he looked to his left and there were two or three cars coming from the south. He noticed a car coming from the north. He could see the headlights in the distance.
24. He left the man being arrested and Constable Gliddon on the kerb and walked onto Gibson Street. He said that he stepped onto the road with the intention of stopping the traffic so that they could get the arrested man across the road to the police vehicle. He did not have a torch or a Hi-Vis vest on. He was wearing dark blue police overalls. He was also wearing his cap which had a reflective band upon it.
25. After stepping onto the roadway and holding up his hands in an attempt to stop the traffic, he said that the car coming south was not stopping and he needed to get out of the way quickly. He said he started to run back to the kerb. As he got close to the kerb, the next thing he knew he was flying through the air. He thought that he went up onto the bonnet of the car and then went off the bonnet and came back down landing on his head. He was near the kerb. He landed about two feet away from the kerb.
26. Apart from the evidence of Senior Constable McVey about the ambient light in the area (which I have rejected), his version of events accords with the version given by the plaintiff and the version given by the other witnesses, particularly Constable Gliddon and the man being arrested, who both saw the event happen right in front of them.
27. I make the following findings of fact regarding the occurrence of the accident: 1. On 8 May 2014 at 6-30pm a collision occurred on Gibson Street, Goulburn between a car driven south by the plaintiff and Senior Constable McVey, who was on foot on the roadway; 2. The plaintiff was travelling at 50kph but as she approached the scene of the accident she slowed to 40kph as she saw a dog in the middle of the road; 3. The plaintiff swerved to her left to avoid the dog, and very shortly afterwards her car struck the police officer; 4. It was dark at the scene of the accident and the street light in the vicinity was not working; 5. The police officer was wearing dark blue overalls and a police cap which had a thin reflective band upon it; 6. He was not wearing a Hi-Vis vest or carrying a torch, both of which he had left in the police vehicle; 7. As the plaintiff's car was approaching from the north, Senior Constable McVey took a few paces onto the roadway, and held up his hands to both southbound and northbound traffic to try to stop the cars, so that he and others could cross the road; 8. The plaintiff did not see Senior Constable McVey before the passenger side of her car struck him, as she was looking ahead and was in the process of avoiding the dog; 9. A northbound motorist also did not see the police officer on the roadway; 10. Senior Constable McVey failed to appreciate that the plaintiff's vehicle was not going to stop, even though his partner Constable Gliddon called out a warning; 11. Senior Constable McVey attempted to regain the kerb but he was too late and the collision occurred.

Why was Senior Constable McVey on Gibson Street?

1. It is important to answer this question, because of a legal issue in the case. It is beyond doubt in this case that Senior Constable McVey was acting as a police officer seeking to discharge his public duty to execute an arrest warrant. The High Court has held that a common law duty of care cannot be imposed if such a duty might potentially be inconsistent with the exercise of powers, duties and responsibilities prescribed by legislation: Hunter and New England Local Health District v McKenna (2014) 253 CLR 270 at [29]-[33]; Tame v New South Wales (2002) 211 CLR 317 at [58], [125], [298]; Sullivan v Moody (2001) 207 CLR 572 at [50], [53].
2. Police officers do not enjoy absolute immunity from liability for negligence in the discharge of their duties. As counsel for the defendant submitted, it is necessary to consider whether, in the particular circumstances of a case, the imposition of a common law duty would place the police officer in a position of potential conflict with the public duty he is simultaneously supposed to discharge.
3. On the night in question Senior Constable McVey and Constable Gliddon went to arrest a man named Trevor. Trevor had failed to appear at court and a warrant had been issued for his arrest. Senior Constable McVey had previous dealings with Trevor which involved situations where he was intoxicated in public places and private houses.
4. When the police went to the house in Gibson Street, there were several people there. Trevor was intoxicated. The other people in the house were affected by alcohol. They were generally argumentative, were swearing and were uncooperative with the police. Senior Constable McVey said: "There was a level of aggression and hostility, but we explained to him he'd need to come with us and he initially came with us readily."
5. Trevor was arrested inside the house. Senior Constable McVey had dealt with Trevor on three previous occasions. On some of those occasions he was flailing around, and using foul language to the police. On one occasion Trevor spat into a police officer's mouth. When they arrested Trevor a female occupant of the house butted in and demanded to see the paperwork. The two police officers took Trevor outside. They were trying to keep things calm. Trevor was delaying going with the police by saying he wanted to go to the toilet and that he wanted a smoke. They spent a minute or two in front of the house. Each policeman had hold of one of Trevor's arms as they walked towards the kerb.
6. They did not search Trevor at that point and Senior Constable McVey said that while it was important that he be searched (to see if he had drugs or weapons or anything that would cause harm) he thought it necessary to get him across the road and to the police vehicle as soon as possible. The people inside the house were yelling. The dog was wandering around and going onto the road. Senior Constable McVey said that Trevor started to tense up and his "body language" indicated that the situation might escalate.
7. It was then that Senior Constable McVey let go of Trevor's arm, left Trevor and Constable Gliddon on the kerb, and stepped onto the roadway with the intention of stopping the traffic by signalling with his arms and hands. The accident happened very shortly afterwards.
8. That evidence was called with a view to showing that there was some urgency and necessity for Senior Constable McVey to step onto the road and get Trevor across into the police vehicle as soon as possible so that the situation did not "escalate".
9. However, the version concerning Trevor's behaviour given by Constable Gliddon in his statement, was quite different. Constable Gliddon corroborated Senior Constable McVey in that each police officer had hold of one of Trevor's arms as they walked him to the kerb. As they were standing on the kerb, just before Senior Constable McVey stepped off on to the roadway, Constable Gliddon said: "At that point Trevor was to my right and John was to Trevor's right. We still both had hold of Trevor. Trevor was compliant and not handcuffed. We had hold of his arms more to ensure his safety due to his intoxication and to guide him across to the police vehicle. John stepped off the curb. Trevor and I did not step off the curb."
10. In his statement Constable Gliddon said nothing about any behaviour or misbehaviour by the occupants of the house. He did say that Trevor was intoxicated and each police officer had hold of an arm as they walked him towards the road. However, the purpose of holding Trevor was due to his intoxication and for his own safety. Constable Gliddon did not say that there was any urgency to get Trevor across the road to the police vehicle because Trevor had tensed up and the occupants in the house were yelling and the situation might escalate.
11. It would have been a simple matter for the defendant to call Constable Gliddon to expand upon his statement. That was not done. In certain critical respects, Constable Gliddon does not corroborate Senior Constable McVey. To speak of Trevor as being "compliant" conveys that Trevor was not prevaricating about going with the police and nor was there any urgency to get him across the road, so as to require Senior Constable McVey to step in front of oncoming traffic to try and stop it.
12. Another important matter is that in stepping onto the road to stop the cars, Senior Constable McVey let go of Trevor's arm. If he was really concerned that Trevor might become physical, he would not have done this. The fact that he let go of Trevor's arm indicates that Trevor was being compliant at the time and that there was no real or perceived risk of the situation escalating.
13. I make the following findings of fact in relation to the arrest of Trevor: 1. Senior Constable McVey and Constable Gliddon attended the house in Gibson Street, Goulburn to execute an arrest warrant; 2. In doing so they were exercising their powers and carrying out their duties and responsibilities as police officers; 3. Trevor left the premises voluntarily; 4. Trevor was intoxicated; 5. As the three men stood on the eastern kerb of Gibson Street, each officer had hold of one of Trevor's arms; 6. The officers intended to take Trevor across Gibson Street to the police vehicle parked on the western kerb; 7. They had hold of Trevor's arms to ensure his safety because he was intoxicated; 8. Senior Constable McVey let go of Trevor's arm and stepped onto the roadway to signal traffic to stop; 9. Trevor was compliant and not causing any problems for the officers; 10. There was no urgency or necessity to get Trevor across to the police vehicle, without waiting for traffic to pass; 11. There was no conflict between Senior Constable McVey's obligations to carry out his public duties, and a common law duty to take care for the safety of road users.
14. There was no reason at all why Senior Constable McVey and Constable Gliddon could not have remained on the footpath for a few more seconds, to allow the northbound and southbound cars to pass, before escorting Trevor to the police vehicle which was across the road on the western side. The plaintiff was travelling at 50kph. This is 13.9 metres per second. It would have been literally a matter of seconds to wait at the side of the road and allow her and the northbound vehicles to pass.
15. There was no urgency of any kind which necessitated the police to carry out their duties by stepping onto the road and stopping traffic to take Trevor across to the police vehicle straight away.
16. I see no reason why a common law duty of care should not be imposed upon Senior Constable McVey in the circumstances. The imposition of a common law duty would not be inconsistent with the exercise of his powers, duties and responsibilities prescribed by legislation. True it is that he had to take Trevor across the road to the police vehicle. However, there was a safe way of doing that and on the facts I have found there was no reason why it had to be done in the fashion in which he chose to do it i.e. by stepping onto the road and trying to stop the cars.
17. In Ticehurst v Skeen (1986) 3 MVR 307, Justice Wood in the Supreme Court of New South Wales said: "I would be prepared to find, as a matter of law, that a police officer coming onto a hazardous condition on the roadway, does owe a duty to other road users to exercise reasonable care to protect them from that hazard. The standard of care and the precautions to be taken, would however depend on the circumstances of the case, including the nature and degree of the risk, competing calls on the services of the officer, the availability of equipment and personnel, and so on." This decision was cited with approval in State of New South Wales v Tyszyk [2008] NSWCA 107 at [143].
18. If there is a duty of care on a police officer to exercise reasonable care to protect road users from a hazard on the roadway, there must also be a duty of care to not create a hazard on the roadway in the first place.
19. There could well be instances where a police officer would not have a common law duty of care imposed in crossing the road, for example if the officer was in pursuit of a dangerous felon, or was running across the road to prevent the commission of a crime. On the facts I have found, the present case is nothing like these examples. My finding is that there was no need or duty to step onto the road to attempt to stop the traffic at that point. The simplest and safest course would have been to remain at the side of the road for a few more seconds before walking the prisoner across the road. By taking those precautions, there would have been no danger to other road users, the police, or the prisoner himself.
20. I make this finding, subject to further consideration of matters which arise when considering negligence and the provisions of the Civil Liability Act 2002 (NSW) (the Act) which are dealt with below. However, I have indicated that I reject the evidence of Senior Constable McVey about the circumstances of the arrest, in so far as I accept Constable Gliddon, whose evidence gives the strong impression that there was no urgency at all about moving the prisoner across to the police vehicle.
21. In detailed and helpful written submissions by counsel for the defendant (MFI 6), the following submission was made at [57]: "The imposition of a common law duty to take reasonable care to avoid harm to motorists in SC McVey's attempt to halt them creates a potential conflict with the discharge of that duty because: (a) on the one hand, to execute the warrant and discharge his public duty, SC McVey needed to de-escalate the situation by getting [Trevor] across Gibson Street as quickly as possible; he also needed to avoid the situation getting out of hand, given Mr [Trevor's] history of resisting arrest, which would put himself, his partner and potentially Mr [Trevor] at risk of harm; and (b) On the other hand, to discharge the proposed common law duty to the motorists, SC McVey would have needed to wait at the kerb until there was a break in the traffic to cross safely in the dark; or alternatively, on the Amended Statement of Claim, to somehow retrieve his hi-visibility clothing or a torch from the police vehicle before attempting to stop the traffic."
22. On the findings of fact I have made, there was no potential conflict between the discharge of the police duty and the imposition of a common law duty to take reasonable care to avoid harm to motorists. On the findings of fact I have made, there was no need to de-escalate the situation by getting Trevor across Gibson Street as quickly as possible. Nor was there any indication, as per the evidence of Constable Gliddon, that the situation might get out of hand at that point.

Negligence - Civil Liability Act 2002 (NSW)

1. Section 5B of the Act provides as follows: "(1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things); (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
2. I find that the risk of harm was that there would be a collision between the car driven by the plaintiff and Senior Constable McVey on the roadway, and that during such collision the plaintiff might suffer injury.
3. I find that such risk was foreseeable. The street was dark at the point of the collision and Senior Constable McVey knew that any driver approaching was already dealing with oncoming headlights, as well as the presence of an unpredictable dog on the roadway. He knew of the risk, as he acknowledged in his evidence, but decided that it was worth taking. He was only on the road a short time before he was struck. The plaintiff's car must have been dangerously close to him when he stepped out in the first place.
4. I find that the risk was not insignificant. While normally in a collision between a car and a pedestrian, the pedestrian suffers injuries, any event involving the collision of a car with an object and the sudden stopping of a car carries the risk of harm to, and the suffering of injury by, the driver.
5. I find that in the circumstances, a reasonable person in the position of Senior Constable McVey would have taken precautions against the risk.
6. I find that there was a significant probability that harm would occur if care were not taken. The harm could well be serious, depending on the actual mechanism of the collision and how it affected the driver's body and psyche. I find that the burden of taking precautions to avoid the risk of harm was minimal. It would have involved Senior Constable McVey waiting for a few more seconds at the side of the road before crossing when there was no traffic at all.
7. The social utility of the activity that creates the risk of harm is relevant, as Senior Constable McVey was carrying out a public duty as a police officer. However, it was a duty which could have been carried out in a safe fashion without in any way derogating from Senior Constable McVey's duties and responsibilities.
8. I find that particulars of negligence (c), (d), (e) and (f) set out in paragraph 16 of the Statement of Claim have been made out. I find that Senior Constable McVey: 1. failed to keep an adequate lookout for the protection of the plaintiff; 2. failed to observe that the plaintiff was in a position of peril in the circumstances (as he himself was); 3. failed to keep any proper lookout - he was looking, but he did not act upon what he saw; 4. failed to make his presence on or near the road known to the plaintiff.
9. I also find particulars (g) and (h) made out. There was no reason why Senior Constable McVey could not have worn his reflective vest. It was in the police vehicle but he did not put it on. It was not as though he and Constable Gliddon had to sneak up to the house unobserved. They simply walked up to the front door and knocked upon it. I also find that he was negligent in failing to have a torch, which again was available to him in the police vehicle. The location was dark. Senior Constable McVey could have clipped the torch onto his belt, as he acknowledged in cross-examination. He did not need the torch in order to effect the arrest, but having the torch as he walked back to the dark road to cross it would have given him a device which might have alerted the plaintiff to his presence.
10. Overall, I find that Senior Constable McVey was negligent in failing to take the precautions which a reasonable person would have taken against the risk of harm.

Causation

1. Section 5D of the Act provides that a determination that negligence caused particular harm comprises two elements. The first is that the negligence was a necessary condition of the occurrence of the harm (factual causation). The second is that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). Section 5D(4) of the Act provides that for the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
2. The negligence of Senior Constable McVey in being on the road, and in failing to get off the road, was a necessary condition of the occurrence of the harm. Had he not been on the road, the accident would not have happened and the plaintiff would not have suffered her injuries. I find that factual causation is made out.
3. I find it is appropriate for the scope of liability to extend to the harm so caused. I see no reason why responsibility for the harm should not be imposed on the negligent party. The cases cited above do not seem to have doubted that it is appropriate that liability for the negligence of a police officer should be imposed, where there is no conflict between public duty and a common law duty of care. I find that the scope of liability provision in s 5D of the Act is satisfied.
4. Counsel for the defendant submitted that it was not possible to conclude that but for the breaches of duty of care by Senior Constable McVey, the collision would more likely than not have been avoided. The submission was that the plaintiff did not see him, because she was focussing solely on the dog on the road. Instructively, Ms Gwynne who was travelling north did not see Senior Constable McVey on the road either, she just saw him thrown off the road at the last second.
5. Whether or not the plaintiff was focussing solely on the dog seems to me irrelevant, given that I have found that Senior Constable McVey should not have put himself on the road in a position of danger and at a risk of collision. Even if he walked onto the road in the first place, he should have jumped back off it well before the plaintiff's vehicle arrived at the point of impact. Causation under s 5D of the Act is made out.
6. Subject to proof of damages, the plaintiff is entitled to a judgment. The defendant State of New South Wales is vicariously liable for the negligence of Senior Constable McVey.

Contributory Negligence

1. In paragraph 24 of the Defence filed on 20 April 2018, the defendant alleges the following particulars of contributory negligence: 1. The plaintiff failed to keep any or any proper lookout; 2. The plaintiff drove her vehicle in an unsafe manner; 3. The plaintiff became distracted by a dog crossing Gibson Street; and 4. The plaintiff failed to take any or any proper evasive action to avoid hitting Senior Constable McVey.
2. I find that the plaintiff was keeping a proper lookout. She saw the dog, even though the night was dark and there was no street light. The dog was in the middle of the road, she kept it under observation and she slowed and then swerved to avoid it. Not only was she keeping a proper lookout, but it could not be said that she "became distracted" by the dog. I find that the plaintiff drove her vehicle safely in slowing down and then swerving to avoid the dog. It is the counsel of perfection to suggest that she should have completely stopped her vehicle, or even hit the dog rather than swerved (as was put to her in cross-examination).
3. I find that there was no unsafe manner of driving of the vehicle. I also find that there was no negligence in failing to take any evasive action to avoid hitting Senior Constable McVey. He placed himself in peril only moments before the plaintiff's vehicle arrived at the point of impact. It is instructive to note that Ms Gwynne, who was driving north, also did not see the police officer. He obviously had a misplaced confidence in his ability to make hand signals, while wearing a dark uniform, on an unlit street, to stop oncoming vehicles. The plaintiff did not see Senior Constable McVey before the accident, but nor did Ms Gwynne. That is because he was only on the road for a short time, directly in the path of the plaintiff, before the collision occurred. There was no realistic opportunity to see him or take evasive action.
4. I find that the allegations of contributory negligence are not made out and, subject to proof of damage, the plaintiff will be entitled to a full verdict.

Section 32 of the Civil Liability Act 2002 (NSW)

1. Counsel for the defendant raised this section in his written submissions. It was not pleaded, and in my view it should have been specifically pleaded. Nevertheless, there was no objection taken to the legal issue being dealt with.
2. Part of the plaintiff's case was that she had suffered a psychiatric injury as a result of being involved in the collision. Section 32(1) of the Act provides: "A person ('the defendant') does not owe a duty of care to another person ('the plaintiff') to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken."
3. The written submissions of counsel for the defendant referred to certain matters which were said to be "circumstances of the case". Firstly, there was an imbalance of risk of injury in a collision between a vehicle and a pedestrian. Secondly, there was a reasonable opportunity for Senior Constable McVey to avoid the collision by returning to the kerb. Thirdly, because of the relatively low speed of the vehicle, the prospect of a collision causing severe injury to either party was low. Fourthly, Senior Constable McVey could not reasonably have anticipated the vehicle would swerve into him.
4. Two psychiatrists gave evidence in the case. Dr Rees and Dr Kossoff were retained as medico-legal experts by the defendant and the plaintiff respectively. Both agreed with the proposition that a motorist running down a pedestrian and seeing the pedestrian lying in the gutter bleeding from the head, in circumstances where the driver may have killed or severely injured the pedestrian, is the sort of event that could promote a post-traumatic stress disorder. Further, they agreed that this could be so in a person of normal resilience psychologically (T 145/13-27). Thus there was evidence, all one way, that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care were not taken. The relevant circumstances of the case were not the subjective beliefs of Senior Constable McVey, but rather the simple fact that a pedestrian negligently failing to leave the roadway when in the path of an oncoming car could cause a collision. In any event, the test in s 32 is subjective, "the defendant ought to have foreseen" that a psychiatric illness could result.
5. When the psychiatric expert evidence in the case is that a person of normal fortitude could well suffer a post-traumatic stress disorder, a recognised psychiatric illness, from the shock of colliding with a pedestrian and seeing them injured, s 32 is satisfied. It is not a barrier to the plaintiff recovering damages in the case, if those damages are otherwise proven.

Damages

1. By an Amended Statement of Particulars filed on 8 February 2019 the plaintiff alleged an injury to her back, an injury to her shoulder and a psychological injury. The plaintiff's case is that the injury was to her left shoulder. Each of those injuries will be considered separately.
2. At the outset, it is necessary to record the evidence concerning the plaintiff's memory, which has been affected from a young age by the radiation and chemotherapy treatment she underwent.
3. The plaintiff was questioned, both in chief and in cross-examination, about a large number of medical appointments and examinations. Many times, her answer was that she could not remember a particular examination or test. That is not surprising, given her extensive medical history. However, her evidence was that her memory had been affected by her childhood treatment. She said (at T 65/2): "I don't remember because the radiation and the chemo and that have, have affected my memory as well and I don't remember - I may not remember what I did, to what yesterday or last week. It's just deteriorated. My memory, ever since the accident, my memory has just gotten worse."
4. The plaintiff's mother gave evidence to the same effect. She said (T 101/22) that the plaintiff had short term memory loss from her childhood treatment. Her memory did not improve over the years (T 101/44).
5. Because of these factors, I have carefully examined the contemporaneous medical evidence regarding the claimed injuries. Much of it was usefully collected in the defendant's Outline of Submissions MFI 6.

Injury to Shoulder

1. No evidence was tendered to causally link the left shoulder problems with the accident. No evidence was tendered to show that the plaintiff complained to any doctor of a left shoulder injury after the accident. The first recorded complaint of left shoulder problems or pain was eight months after the accident. However, the plaintiff had attended hospitals and doctors many times in those eight months to complain about other matters, including pains and problems caused by the accident.
2. On 8 May 2014 the plaintiff presented to the Emergency Department of Goulburn Base Hospital and made no complaint of any physical injury.
3. On 11 May 2014 the plaintiff presented to the Emergency Department and complained of lower back pain, radiating from right to left in the groin, to the back of the thigh. There was no recorded complaint of shoulder problems.
4. On 12 May 2014 the plaintiff presented to the Emergency Department with right-sided chest pain, which was worse when she moved her arm. There was no recorded complaint of shoulder pain.
5. On 14 May 2014 the plaintiff presented to the Emergency Department with right-sided pain under her clavicle and down her right arm. There was no recorded complaint of any shoulder problems.
6. On 15 May 2014 the plaintiff told Sergeant Burlin that she injured her right shoulder in the accident.
7. The first recorded complaint of left shoulder pain was in January and February 2015. The plaintiff presented twice to the Emergency Department. On the first occasion she complained of a painful left arm, which she described as commencing the previous afternoon. On the second occasion she complained of a numb left arm and hand after she had been bitten on the left shoulder the day before by an insect. There is no reference in the hospital notes to any connection with the subject accident.
8. There is no record of a complaint about the left shoulder for another 10 months. In November 2015 the plaintiff complained of sharp chest pain radiating to her left arm.
9. While the plaintiff asserted in her evidence that she suffered left shoulder pain after the accident, the contemporaneous medical records do not support that. In view of the plaintiff's acknowledged memory problems, I cannot rely upon her evidence that she did have left shoulder pain after the accident. The plaintiff's mother also gave evidence that she had problems in the left shoulder after the accident, but I do not accept that evidence as accurate, in the light of the contemporaneous documentary material.
10. I find that the plaintiff suffered no injury to her left shoulder in the accident.

Injury to Back

1. There is no medical evidence to causally link any back injury with the accident. However, the plaintiff did make contemporaneous complaints about a back injury. To complicate matters, she had pre-existing back problems.
2. On 16 November 2012 the plaintiff presented to hospital complaining of back pain in her lower lumbar area. On 22 December 2012 the plaintiff saw her GP for back pain, reporting that she had such pain on and off for three months. She was sent for a CT scan of the lumbar spine, which showed diffuse disc bulge and mild central canal narrowing in L4/5 and L5/S1. On 28 December 2012 the GP referred the plaintiff for physiotherapy.
3. Complaints of back pain did not emerge again until 11 May 2014 (three days after the accident) when the plaintiff presented to the Emergency Department complaining of lower back pain radiating from the right to left groin and to the back of the thigh.
4. There were then no further complaints recorded in either the hospital notes or the notes of the general practitioner until 30 April 2015. The plaintiff was referred again for physiotherapy on 5 June 2015. The records noted that her back pain had been present for about two months.
5. A CT scan in March 2016 showed that the plaintiff had the same disc pathology as had turned up in the 2012 scan.
6. In cross-examination the plaintiff agreed that her back pain since the accident had not impacted on her ability to function or do domestic chores.
7. I find that the plaintiff did suffer a soft tissue injury to her lower back in the accident. It was a soft tissue injury which was self-limiting and which only caused her back pain for a very short time after the accident.
8. I find that the subsequent complaint of back pain in April 2015 was not related to any injury suffered in the accident.
9. I also find that, in accordance with the plaintiff's evidence, the back injury never caused her any functional disability.

Psychological Injury

1. The defendant had a long history of depression and post-traumatic stress disorder prior to the accident. She had been taking 50mg of Zoloft, an anti-depressant, for many years before the accident. Her condition became much worse after the death of her son Mitchell in 2006. The medical records of the GP and of Goulburn Base Hospital show that the plaintiff had been consulting medical practitioners about her psychiatric problems for many years prior to the accident. She often presented to Goulburn Base Hospital with chest pains. She went there as a precaution, because of her cardiomyopathy. However, the plaintiff was usually reassured that her chest pains were due to anxiety.
2. In the lead-up to the accident the plaintiff had the following consultations regarding psychiatric problems: 1. On 23 April 2013 she told her GP she was depressed and had suffered from mood swings, panic attacks and a feeling of hopelessness; 2. On 5 August 2013 the plaintiff told her GP that she was depressed since separating from her partner. She reported mood swings, panic attacks and a feeling of hopelessness; 3. On 8 November 2013 the plaintiff told her GP that she was suffering from depression, mood swings, panic attacks and a feeling of hopelessness. She was referred to a psychologist Ms Andersen; 4. The plaintiff saw Ms Andersen twice in late 2013 to discuss problems with her daughter and her mother; 5. On 24 March 2014 the plaintiff presented to the Emergency Department and complained of sharp chest pain. She described being stressed because of her daughter's health and her father's health.
3. The evidence given by the plaintiff, which I accept, concerning her feelings and concerns at the scene of the accident and straight afterwards, has been recited above. Her demeanour at the accident scene was corroborated by the evidence of her mother, who drove to Gibson Street to assist her daughter. Ms Gwynne, the nurse who was one of the passing motorists, felt the need to comfort and console the plaintiff at the scene of the accident. She was clearly shocked and affected by what happened.
4. In her evidence the plaintiff said that her driving had been affected. She was still scared when driving at intersections in case someone jumped out in front of her and she hit them. This hesitancy in driving was corroborated by the evidence of the plaintiff's mother, which I accept.
5. The plaintiff said that even seeing a police officer now led her to feel uncomfortable. She started shaking even if she saw a policeman getting a coffee at the local café. Her mother too had observed this behaviour, and I accept that evidence.
6. The plaintiff suffered from flashbacks about the accident for a time. She no longer had these by the time of the trial.
7. The plaintiff had seven sessions with the psychologist Ms Andersen in the five months after the accident. She discussed with Ms Andersen a number of other stressors in her life, being: her father's illness; her grandmother's illness; her brother's epileptic seizures and consequent motor accident; issues with her partner, including taking out an AVO and having concerns that the partner would take her daughter away from her. The plaintiff did complain to Ms Andersen about the accident being one of the stressors affecting her.
8. The plaintiff last saw Ms Andersen in October 2014. She reported that she was no longer having flashbacks concerning the accident. The plaintiff has not seen Ms Andersen or any other psychologist since that time. Nor has she sought referral to a psychologist for problems related to the accident.
9. Counsel for the defendant pointed out that the medical records of her GP and of the hospital contain notes of a number of post-accident attendances where mental health concerns were discussed or reviewed. In none of these records is there any note of the accident being part of the problem.
10. The plaintiff saw two psychiatrists for medico-legal purposes - Dr Kossoff in 2017 and Dr Rees in 2018. Both provided written reports and gave concurrent oral evidence.
11. The two experts concurred that the accident caused an aggravation of pre-existing depression and post-traumatic stress disorder (PTSD).
12. The experts disagreed about any continuing effects of the accident upon the psychiatric state of the plaintiff. Dr Rees was of the view that the aggravation had resolved and Dr Kossoff thought that the accident had contributed to the plaintiff's present symptoms, although they had improved.
13. It is difficult to place much weight on either view about whether or not the psychiatric symptoms have resolved, when each expert saw the plaintiff only once, and then several years after the event. The contemporaneous complaints made by the plaintiff and the treatment sought by her provide a more accurate picture, in my view, of the effect of the accident upon the plaintiff's psychological state.
14. From the notes of Ms Andersen, it is apparent that by October 2014, five months after the accident, the plaintiff was no longer having flashbacks about the event. I do accept that the plaintiff still suffers from the following minor psychological symptoms: hesitancy in driving; and discomfort when in the presence of police officers.
15. In my view, neither of those are of any great moment, and have not been since late 2014. Neither of those have prevented the plaintiff from performing her household duties, and neither have prevented the plaintiff from providing whatever level of domestic assistance was required by the plaintiff's mother as her condition with CMT has deteriorated.
16. The plaintiff's mother gave evidence that to her impression, the plaintiff has been less motivated to perform household tasks and provide assistance, since the accident. In May 2014 the plaintiff was doing all the cooking for the household. By that stage the CMT had progressed to the point where the plaintiff's mother could not lift pots or do cooking. The disease had affected her hands and fingers such that her fingers were permanently partially contracted, were numb, and were of less utility than normal. The plaintiff was also at that stage doing all of the housework including vacuuming and heavy cleaning. She was doing the washing and hanging out the clothes.
17. The plaintiff was asked directly in cross-examination what it was that stopped her performing household tasks and providing assistance nowadays. She said that it was her left shoulder. She said that it was not her back. She said that she could not say whether or not it was her psychological condition.
18. I place little weight upon the plaintiff's mother's evidence that the plaintiff has been demotivated in performing household tasks. Those tasks have increased as the mother's condition has deteriorated. It was apparent from the evidence that the mother and the daughter have different standards of housekeeping. The plaintiff's mother said that instead of sweeping the floors every day, the plaintiff might only get around to it every second day. The cooking is now shared between the plaintiff and her partner, who stays over several nights a week. However, there was no evidence that the plaintiff could not do the cooking every night if needed. The plaintiff's brother and her partner now assist with heavy household tasks including vacuuming and cleaning, and hanging out washing. However, the plaintiff's own evidence was that she was prevented from doing this heavier work by her shoulder alone.
19. There was other evidence and material relevant to the psychiatric issue. The plaintiff gave evidence that she drove her daughter to and from school. The plaintiff, her daughter and her partner went out as a family for dinner a couple of times a month. They also went to the beach about twice a month. The plaintiff and her partner went on a four-day cruise to celebrate her 40th birthday. The plaintiff said that she did not avoid going out, but she felt that she had to stay at home as much as possible because she could not leave her mother for too long, with her disability.
20. Dr Kossoff asked the plaintiff about impairments from the accident. The plaintiff said that she could not hang washing and she could not reach the higher cupboards in the kitchen. The plaintiff did not report any impact of the psychological condition on her ability to provide domestic services.
21. Both expert witnesses acknowledged the significant contributions made by various events in the plaintiff's life, to her overall mental state. In particular, the plaintiff has been psychiatrically unwell ever since the death of her son Mitchell in 2006. She gave evidence that she often hears a boy's voice behind her, which she believes is her deceased son. When she turns around of course there is no-one there. The psychiatrists explained that this was not a hallucination, but was the plaintiff listening to her own thoughts.
22. It is also important to note that the plaintiff was on the anti-depressant Zoloft well before the accident, and has remained on it since, at the same dosage.
23. I find that the overwhelming contribution to the plaintiff's present problems comes from stressors other than the accident and its aftermath. I find that the plaintiff's current psychological disabilities attributed to the accident are the mild problems of hesitancy while driving and discomfort when in the presence of police officers. I find that neither of those sequelae have any significant impact upon the plaintiff's life. I find that no psychiatric disability suffered since the accident presently impacts upon the plaintiff's ability to perform the gratuitous domestic services for her mother.
24. I find that there was a period of five months between May and October 2014 when the plaintiff was suffering from a higher level of psychological problems, which included distressing flashbacks about the accident. I find that in that time the plaintiff suffered more than she does now. I find that there was no impact within those five months upon the plaintiff's ability to provide gratuitous domestic services to her mother. There was simply no evidence that that was so.

Non-economic Loss

1. By s 16(1) of the Act no damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. Given the findings made above about injuries and disabilities, I assess the plaintiff at 5% of a most extreme case. There will be no award for non-economic loss.

Out-of-pocket Expenses

1. The plaintiff claimed $1,330.70 (PX 8). All items in this claim related to attendances at the GP or the physiotherapist. The defendant submitted (MFI 4) that only the first three attendances at the GP, and the travelling expenses for visiting the GP three times and the psychologist four times, should be allowed. Because of the findings made above, I accept that submission. There will be an award for $283.60 + $33.25 = $316.85 for past out-of-pocket expenses.
2. The plaintiff has had no treatment for the soft tissue lower back injury, caused by the accident, since mid-2014. The plaintiff has had no psychological treatment referrable to the accident since 2014. There will be no award for future out-of-pocket expenses.

Section 15B Claim

1. The plaintiff's claim for loss of capacity to provide gratuitous domestic services to her mother fails on the facts, for reasons given above. There will be no award for this head of damage.

Conclusion and Orders

1. There will be judgment for the plaintiff for $316.85.
2. My orders are: 1. Judgment for the plaintiff for $316.85. 2. Order the defendant to pay the plaintiff's costs.

Amendments 22 February 2019 - Deletion to reflect agreement between parties as to appropriate costs order DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 February 2019